As usual, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN, has thrown the media into frenzy with his statement that the National Assembly lacks power to summon president Buhari over his “operational use of the armed forces” adding that “summoning the President on National Security operational Matters, the House of Representative operated outside constitutional bounds.” According to Malami, appearing before NASS is “inherently discretionary in the President and not at the behest of the National Assembly”.
Malami’s position completely obviously overlooked Sections 217, 218, 219 and 220 of the Constitution which render operational use of the armed forces subject to the powers of the National Assembly. The NASS decides the establishment, composition, command and operational use of the armed forces.
To be more precise, Section 218(4)(a) of the Constitution provides that “the National Assembly shall have the power to make laws for the regulation of the power exercisable by the President as Commander-in Chief of the Armed Forces of the Federation” hence, the current Armed Forces Act.
Furthermore, sections 88 and 89 of the constitution empowers NASS to invite or summon “ANY PERSON IN NIGERIA” to answer questions relating to areas within its legislative competence and for the purpose of enabling it to “expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it” Is Malami saying that President is not a “person in Nigeria”?
With profound respect, the argument in some quarters that summoning the President as required by section 89 of the constitution will run contrary to the immunity clause in section 308 of the constitution is beside the point. The reason why court held that Fayose could be subpoened by court to give evidence irrespective of his immunity in A.D v. Fayose (No 1) (2004) 26 WRN 34 is similar to the very reason why Malami’s argument that Nass lacks power to summon Buhari ought to fail. The reason is that both election petition and NASS investigation are provided by the same constitution so they bought constitute exception to the immunity clause. In fact, legislative investigation has Upper hand because unlike election petition, NASS is not even a court as mentioned in section 308 of the Constitution. If election petition which involves court can be exception to immunity, how much more the NASS proceedings which is not a court?
Assuming for a moment that the other legal of the argument that Nass lacks power to compel attendance of Buhari is correct, same cannot automatically mean that they lack power to summon the president. The power to summon is one thing and power to compel attendance is another. They are mutually exclusive. One cannot override the other. Even the US whom we modelled our constitution after, their Congress have many times summoned the US president.
Since his assumption of office in 2015 as AG and Minister of Justice, Malami has been raising one controversy or the other. Not long ago, while reacting on the EndSars Lekki incidence, Malami said “hoodlums” wearing military uniforms may have shot Nigerian protesters campaigning against police brutality and even added that said it was “pre-emptive” to conclude that there had even been Shootings in the first place.
In a related development, Malami discarded a report of the National Human Rights Commission (NHRC) which indicted and recommended prosecution of 33 SARS operatives for various rights violations including, extrajudicial killing, death in police custody, unlawful arrest, biased investigation, unlawful intimidation, harassment, criminal assault, torture, cruelty, inhuman and degrading treatment, threat to life, extortion and confiscation of property, among others. NHRC debunked claim of the AGF that there are no sufficient evidence for the prosecution of the indicted officers.
There are allegations in the media against Malami of shielding 10 soldiers who allegedly killed three police officers and two civilians in Taraba to aid the escape of a kidnap kingpin, Bala Hamisu popular known as Wadume, from police custody. Malami has dropped charges against all the 10 soldiers.
It may be recalled the same Malami just of recent unilaterally ‘purportedly’ amended the Rules of Professional Conduct for Legal Practitioners in gross violation of the Legal Practitioners Act which gives such power to the General Council of the Bar.
Apart from the foregoing, Malami has serially defended Buhari’s disobedience to court orders. He supported the rearrest of Dasuki even when court granted Dasuki bail. He justified it on the basis that Dasuki’s ”personal right can be violated for the larger public good.” He accused Dasuki of being responsible for more than 100,000 deaths.
Even when Dasuki and Sowore were released from detention, Malami insisted that Nigerian government released the duo from detention as an ‘act of mercy’.
Malami has also been fingered in numerous attempts to shield Abdulrasheed Maina from being prosecuted by the Economic and Financial Crimes Commission on suspicion of embezzling billions of naira as Chairman of the Pension Reform Task Team. Malami was not only alleged to have met Maina at some obscure location in Dubai in the dead of night. At a point, upon hearing that the National Assembly was investigating Maina, Malami rushed an “ex parte” (without notice to the other side) application to the court to halt the investigation. Thankfully, the court refused and insisted that the National Assembly be properly put on notice of his brazen action.
The “sins” of Malami as Attorney-General of the Federation are too numerous to be counted. Of course the Head of the judiciary, Onnoghen CJN was disgraced out of office under his very watch as Chief Law Officer of the Federation.
It is our suggestion that the learned silk should strive to have his name written in gold as AGF, not otherwise. Agreeably, he is political appointee exercising delegated authority as determined by his appointor – the President, however, his commitment should strictly be to the rule of law and overall interest of the citizens. After all, in saner climes a political office holder resigns if his conscience doesn’t approve things he is assigned to do or if he fails the citizens.
Security situation of the country is bad. Advising the number one citizen of the country to dishonor invitation by members of the National Assembly who are elected representatives of the people doesn’t speak well of him as AGF. We have enough anarchy in the country already; we do not need to extend the frontiers of anarchy by allowing advising government not to give account to the people.
Refusing to honour invitation of the NASS by Buhari is a gross violation of the constitution. We so submit!
Musa Ansa writes from New york
